This blog is a collection of what goes through the mind of a father, a husband, a son, a friend, a lawyer (not your lawyer), and a storyteller, all competing for attention in my head.
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Sunday, July 19, 2009

The Case Against Sotomayor?

So, Judge Sotomayor's confirmation hearings ended last week, and among the first things I heard from the Bush base was that she was unintelligent, an "activist," a "bigot," and unqualified for the job that was a foregone conclusion to be hers. What I didn't see in these posts, however, was an ounce of support for their conclusory statements.

As recently as yesterday on an open post on my good friend and fellow AF vet Gun Toting Liberal's site there were such conclusory statements:

As a person, Judge Sotomayor is a racist, a bigot and a liar, there is no way, besides blatant liberal hypocrisy, to excuse her statements of the last 20 years, let alone the way those statements exactly contradict the ones of the last twenty days. As a judge, she is mediocre at best and cowardly at worst, She has shown no exceptional abilities to explain why she should attain the highest level of her profession, besides a decidedly liberal bent.If her personal opinions were voiced by anyone besides a “wise latino woman” that persons public service career would come to a very abrupt and publicly humiliating end. Schumer, Leahy et all would make sure of it.

To this, I posted a reply:

Links, and support please. Judge Sotomayor has a longer record than any nominee in the past generation, surely there are several cases that show her lack of exceptional abilities and decidedly liberal bent, and contradict the ABA’s rating of “Well qualified,” as well as her record of being rated (at a minimum) qualified over her tenure.

What I was looking for, and what I thought was fairly apparent from my comment, was some evidence supporting the claim that she was "mediocre at best and cowardly at worst," as those statements seem to need to stem from some empirical evidence. What I got in return was yet another conclusory statement:

If any conservative or moderate justice seated presently had ever once even mumbled anything remotely similar to what has basically been a mantra of Sotomayor, the liberals in congress and the media would have crucified them. The double standard that has been achieved here is stunning.

What's interesting about this comment is that it doesn't even come close to the subject on which I had asked for support - rather it reinforces (such as it is) the specious claim that Judge Sotomayor is a racist.

I attempted again to gather support for this position:

I never imagined GHWB would appoint anyone who was far left liberal to any judicial position. But again, I ask for the opinions that she wrote that establish her as a far left liberal as well as her reported lack of quality in her position, as well as explanations for those opinions demonstrating why they are liberal (or as others have suggested on other sites “activist”). Here, I’ll start the ball rolling by posting to another Obsidian Wings post on Sotomayor’s record, which in turn links to a Tom Goldstein SCOTUS Blog post on her record. His summary:

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

This record stands in stark contrast to the position that she is a racist or a bigot, though it does demonstrate she is of a different caliber than Justice Alito, who announced at the opening of his confirmation that he does use his ethnicity to help him form his opinions, a statement borne out in his concurring opinion in Ricci, arguably an activist decision based on empathy.

Here, as you see, I have produced not only evidence of Judge Sotomayor's record and the dearth of cases supporting a claim of racism or that her race would somehow influence her ruling based on the best evidence available - namely her record, and then proceeded to produce some evidence in controversion to the claim that the "liberals in congress and the media would have crucified" a Conservative appointee who made similar statements with the recent appointee of Justice Alito, who, one would assume, would have ample evidence of Media and Liberals "crucifying (interesting choice of words)" his statements about ethnicity affecting his decisionmaking. I don't recall a media frenzy about this when he went through the confirmation process, nor do I remember a huge media crucifiction of Justice Alito with his concurrance in the case linked above.

The response to this, supporting the categorical statements made above?

[I]t is your choice to ignore what she has repeatedly stated is her belief, the comment concerning her gender and ethnicity allowing her to render better decisions than others who do not share those same traits is not a one time, off- handed comment. It has been an oft repeated, ingrained belief, which happens to be bigoted and racist. My point being ... is that their (sic) exists a huge double standard in the Lib/ Demo leadership that is repugnantly hypocritical.

Again - note the complete lack of documented support for the position, rather a third iteration of the same talking points. This, of course, is how the Conservative base works - issue a conclusory statement that seems supportable by one or two statements taken out of context and then run on those - repeating them ad infinitum and then citing those others who repeat the same talking point to garner the appearance of greater support, thus leading the talking point to fester into a "fact."

Now I don't know - perhaps there is ample evidence of Judge Sotomayor acting as a racist/bigot and using said racism/bigotry to form her positions, but without actually seeing any of it - I cannot subscribe to such a position. Unfortunately, there are many out there incurious and partisan enough to take such a position and then dig in so deep that nothing can shake their "opinion." That said, I'm still open to empirical evidence demonstrating that Judge Sotomayor is what the wingnuts on the Right claim her to be.